Saturday, June 25, 2011

The people who filed a civil case seeking to hold former President Gloria Macapagal Arroyo liable, under command responsibility, for the extrajudicial killings and disappearances during her watch must have known what chance of success they had. Military commanders have been brought to Court for the same purpose, but no suit has succeeded. But this is not because we have rejected command responsibility as law but rather because of failure to establish the necessary link between the commanders and the crime.What is the doctrine of command responsibility? In its simplest terms, command responsibility means the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflicts. The concept itself is not new. Sun Tzu recognized it in his sixth century classic The Art of War, and the Holy Roman Empire applied it as early as 1474. Its more elaborate development, however, did not come until after World War II.We can perhaps begin with the case closest to our country. General Tomoyuki Yamashita was the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands. He was charged with violating the laws of war. The charge stated that Yamashita, “ [W]hile commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the Philippines.”Legal scholars and commentators who have studied the case are divided on the basis for the conviction of Yamashita. Did Yamashita have actual knowledge of the crimes or even ordered their commission? Or was he convicted on the basis of presumed constructive knowledge? There was no clear definition in the decision of what the commander’s state of mind had to be in order to justify conviction. It was not until later that the doctrine of command responsibility underwent more careful development.The first important development was the codification of the doctrine in Protocol I to the Geneva Convention of 1977. Article 87 provides that parties to a conflict should require military commanders to prevent, supervise and report breaches of the Geneva Conventions and Protocol by troops and others under their command and, where appropriate, initiate disciplinary action. On the basis of the text of Protocol I the ICRC Commentary identified three conditions for command responsibility:(i) the person to be held responsible must be the superior of the person or persons committing the breach of the convention ;(ii) the superior must have known or had information which should have enabled him to conclude that a breach was being committed or was going to be committed ; and(iii) the superior did not take all feasible measures within his powers to prevent the breach.These requisites were later reflected in Article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia ("ICTY") which provides as follows: "The fact that any of the . . . crimes within the jurisdiction of the Tribunal] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."The Trial Chamber identified three elements for liability pursuant to Article 7(3): (i) the existence of a superior-subordinate relationship; (ii) that the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) that the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator. As things stand now, it is already a well established norm of customary and conventional law that "military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates." Under the incorporation principle of our Constitution whereby we “adopt the generally accepted principles of international law as part of the law of the land . . ,” this is now also domestic law.As much is said by former Justice Carpio Morales in a concurring opinion in a 2010 case decided by the Supreme Court. A categorical adoption of the doctrine of command responsibility, as Justice Carpio Morales said, will bring the writ of amparo cases to their logical conclusion.27 June 2011

Saturday, June 18, 2011

This seems to be a year of religious celebratory jubilees so let me add another one which has not yet been publicized. I am referring to the Maryknoll Fathers, Brothers and Sisters to whom the Philippine Church owes so much. This year they celebrate 100 years of missionary zeal.Measured in term of longevity and by comparison with the early religious missionaries, they are a very young religious group. Moreover, whereas early religious missionaries were European in origin, the Maryknoll Fathers and Sisters are a product of the American Catholic Church.How they started is described in the Maryknoll Website thus: “When two American priests from distinctly different backgrounds met in Montreal in 1910, they discovered they had one thing in common. Father James Anthony Walsh, a priest from the heart of Boston, and Father Thomas Frederick Price, the first native North Carolinian to be ordained into the priesthood, recognized that through their differences, they were touched by the triumph of the human spirit and enriched by encountering the faith experience of others. This was the foundation of their mutual desire to build a seminary for the training of young American men for the foreign Missions.”Sharing their missionary desire was Mollie Rogers, a graduate of Smith College, who would become Mother Mary Joseph and superior of the Maryknoll women religious.China became their first missionary target. The first group of men, led by Father Price, left for China in 1918, but he died of appendicitis almost a year later in Hongkong. The first group of women, also for China, left in 1921.I do not know when the Maryknoll Fathers came to the Philippines. The Maryknoll Sisters came in 1925 and ran, among others, Maryknoll College in Quezon City until they handed the school to lay women who were graduates of the school. The Maryknoll Fathers have been very fruitfully active in pastoral and social work. Fathers and Sisters continue to do quite work in the Philippines, facing new challenges and opportunities in their explicit thrust for greater solidarity with the poor and greater role for lay people in the work of the Church.The work of Maryknoll missonaries in China has been nothing short of heroic. Among the Maryknoll missionaries in China the most celebrated was Bishop James E. Walsh. Bishop Walsh was with the first group of priests who left for China in 1918. For eighteen years he was superior of the Maryknoll mission in China and in 1927 he was ordained bishop. Charged with espionage by the Communist government, he was arrested in 1959 and at the age of 67 was sentenced to a twenty-year imprisonment. For almost twelve years he was kept in isolation only to be released suddenly in 1970 on the eve of the President Richard Nixon’s visit to China. Bishop Walsh was faithful to his missionary vocation even in the face of persecution. He died at the age of 90.For their part, the Maryknoll sisters who came to China in 1921 introduced what came to be called the Kaying Method, Kaying being one of the Maryknoll mission territories. It was a method of missionary work “in which religious women were sent out in pairs, living among the local populations for a month at a time or traveling from remote village to village, training lay catechists and establishing contacts with unevangelized areas. They were cut off from the sacramental life of their communities for long periods and also lived with far less privacy than was customary for religious women, making the method controversial. By 1939, however, because of the success of the model (and the large numbers of Maryknollers volunteering for such work), the Kaying Method received a commendation from the Vatican, and its use became widespread throughout mission territories in China.”Following World War II and the curtailment of their ability to send missionaries to some parts of Asia, the Maryknollers set their sight on Latin and Central America. There developments turned heroic especially in El Salvador. The story of Sister Ita Ford and three others who had been working among the poor of El Salvador electrified the United States. They were kidnapped, brutalized, raped and murdered by members of the Salvadoran National Guard.This year, we join the Maryknoll Fathers, Brothers and Sisters in thanking God for the blessing they have received and we congratulate them for all their heroic work for the Church in Asia, including the Philippines, and in Latin and Central America. In 1996 they renewed a call to their membership to “join the struggles for justice of the poor, indigenous peoples and women against economic, social and cultural oppression” and “in announcing the healing, reconciling and liberating Jesus.” May they continue to be blessed in their work.20 June 2011

Saturday, June 11, 2011

The Senate has approved the bill synchronizing the next ARRM elections with the 2013 national elections. The bill had originated from the House of Representatives, but, even with the changes made by the Senate, the House re-approved it. The President will certainly approve it. He has been asking for it. The effect, once it becomes law, is that positions presently held by elective officials will become vacant and will have to be filled somehow. The bill provides that the resulting vacancies should be filled by appointment by the President. Thus it will be, unless the Supreme Court declares it unconstitutional. What are the constitutional issues that might be brought to the Supreme Court?I hear it being said that changing the date of election fixed by the current law will violate the autonomy of the Autonomous Region. I doubt that such a challenge will prosper. The current date of elections, first Monday of August 2011, was determined neither by the Constitution nor by the Organic Act of the ARRM. The current date was fixed by simple statute. And since Congress has no authority to pass irrepealable laws, the current date may be changed by Congress – as in fact it has been changed in the past. Moreover, the Autonomous Region is not an independent sovereignty. It is still within the sovereignty of the Republic and the laws that govern it must conform with the Constitution of the Republic. It is the intent of the Constitution, clearly apparent in the deliberations of the 1987 Constitution and affirmed by the Supreme Court in 1991, that local elections must be synchronized with the national elections. Clearly ARRM elections are local elections.The more delicate problem, however, is the manner of filling the resulting vacancies. The law will create vacancies lasting for twenty-one months. Both the House and the Senate have opted against giving to current incumbents the right to hold-over in the position. Could Congress have opted for giving them the right to hold-over? It is said that allowing hold-over would violate the Constitution which says that the term of local officials is fixed at three years. In my view, however, allowing hold-over will not amend the three year term. It will only extend the tenure of the officials and the constitutional term will remain at three years. Our Court has on a number of occasions pointed to the difference between term and tenure. Constitutional term may be changed only by constitutional amendment whereas tenure can be shorter or longer than the term. For instance, the death of an incumbent before the end of three years does not change the term.Congress has opted not to allow hold-over by the current elected officials. Instead, it has provided for filling the vacancies by appointment by the President. Again, the principle in the law on public officers is that when there is a vacancy and the law has not provided for the manner of filling the vacancy, the vacancy my be filled by appointment by the President. What Congress has done is merely to affirm a residual power of the President to make the appointment. Here again the provision is being criticized for giving to the President a free hand on whom to appoint. But that is the nature of the appointing power. It is the executive discretion to decide to whom to entrust the powers and duties of an office.The discretion of the appointing authority may be limited by law as when the President is allowed to choose only from among a list prepared by another body. This is the case in the appointment of judges and justices, including justices of the Supreme Court and the Ombudsman. The President can choose only from among a list submitted by the Judicial and Bar Council. (Not that the Judicial and Bar Council is immune from being influenced by the President!) Similarly, in the drafting of the Organic Law for Muslim Mindanao, Congress was supposed to be assisted by a consultative commission composed of representatives “appointed by the President from a list of nominees from multi-sectoral bodies.” In the synchronization bill there is an attempt to limit the appointing authority of the President by requiring that the President choose from among a list submitted by a consultative body. But as I understand it, the consultative body itself will be formed by the President. In effect, the President will, for all practical purposes, have a free hand in the choice of appointees. Naturally, the opposition is bound to cry foul. It is not clear how much the crying will do.There is an important provision in the House version which the Senate chose to eliminate. The House version prohibited those appointed by the President from running in the 2013 local elections for ARRM positions. The Senate eliminated the prohibition but the House did not object. Clearly, the majority in Congress is having its way. So, what’s new?13 June 2011

Saturday, June 4, 2011

Today, June 6, 2011, the Ateneo Law School celebrates its Diamond Jubilee. Allow me, therefore, to “boast” a little.The Law School could have been much older than seventy-five had it not been for the vicissitudes of Jesuit history. Not that age is necessarily the measure of greatness, but grey hair can command some reverence.The story begins when the Spanish colonial government felt the need for lawyers while Manila had neither legal courts nor schools of law to train lawyers. The Audiencia, forced to fill the gap, exercised both criminal and civil justice – to nobody’s satisfaction. The situation clamored for a solution. Thus it was that in 1717 King Philip V of Spain established three chairs of law in Manila -- one for Canon Law, another for Civil Law, and a third for Roman Law. Unfortunately the chairs were not attached to any school and for eight years not a single student came to attend lectures.Enter the Jesuits. The Manila Audiencia turned to the existing Jesuit school, Colegio de San Ignacio, and there established law professorships. Among the distinguished professors was the 27 year old Jesuit Father Pedro Murillo Velarde who arrived in Manila in 1723. Father Murillo Velarde had studied law in the University of Granada and taught law at the world famous University of Salamanca.Alas, the law school enterprise had to suffer the fate of the Jesuits. In 1767 King Charles III Spain decreed the expulsion of Jesuits from all Spanish dominions. The decree was carried out in the Philippines in 1768. Thus ended the first Jesuit law school enterprise in Manila.Worse yet, Pope Clement XIV, under strong pressure from the Bourbons of France, Spain, and Naples, suppressed the Society of Jesus. The decree of suppression, however, needed the conformity of reigning monarchs. Empress Catherine of Russia chose not to implement the suppression and Jesuits found refuge in her domain.Jesuit resurrection came in 1814 when Pope Pius VII restored the Society of Jesus throughout the world. Queen Isabella II of Spain followed with the request for Jesuits to return to the Philippines. In 1850, or 150 years ago last year, ten Jesuits arrived in Manila with instructions to evangelize the mountain tribes of Mindanao and other islands. Soon enough, however, they were persuaded to establish a school, Ateneo Municipal de Manila, which would later evolve into what is now the Ateneo de Manila University.It was not, however, until June 6, 1936, by then under American Jesuits, that the Ateneo de Manila decided to open a school of law.The first Dean of Law was Manuel Lim. Legal luminaries were recruited as professors from the Supreme Court, the Court of Appeals, the legislature and from among private practitioners. Classes were held in the main building of the Ateneo between Dakota Street and Taft Avenue along Padre Faura. In large airy classrooms students dug into Manresa, Sanchez Roman and Viada and into a gradually developing Philippine and American jurisprudence and other legal literature. Among the more prominent law school campus figures were Raul Manglapus, Ernesto Escaler and Felipe Buencamino who brought honor to the school by their debating prowess. The first graduates all passed the Bar Examinations and the class valedictorian of the second batch of graduates, Claudio Teehankee, was the first Atenean to top the Bar examinations. Since then, an enviable tradition of high performance in the Bar Examinations has continued.Once more, however, law studies in the Ateneo had to be interrupted. In 1941 the nation went to war. Inter arma silent leges.The entire Ateneo de Manila in Padre Faura was ravaged by war and the Law School did not reopen until 1948. Classes were held in Quonset huts until a modern building, dominated by a statue of St. Thomas More, could be built. Martial Law in 1972 did not interrupt the running of the school. The participation of students in the struggle for the full restoration of democracy did not affect the high standards of academic excellence.In 1978 the school moved to De la Costa Street in the Makati business district. But as the number of students and the need for more room grew, another move had to be made. In 1998 the school moved to its present location in Rockwell Center, Makati City.As the school celebrates its 75th year, what does it have to show? Its place of honor is now secure in the legal world of the Philippines. Its students have been winning in moot court competitions both local and regional and have won the highly prestigious World Moot Court competition in Washington, D.C. Its graduating students regularly reap the highest percentage of passing in Bar Examinations. Many alumni and alumnae are highly respected in law practice, both traditional and “alternative,.” They are also prominent in the world of legislation, and in local and national executive positions. Its Human rights Center has won world recognition. More and more alumni and alumnae are being appointed to the various levels of the judiciary, including the Supreme Court where two have become Chief Justice. All that is left is for the current administration, faculty and students of the school to strive to surpass what has been achieved so far. Ad maiorem Dei gloriam.6 June 2011